Bannon v. Levy

A judgment taken by default against the defendants was on their application opened as matter of favor so far as to permit them to come in and defend, upon condition that they deposit into court the amount of the claim and costs as security for any *92judgment that might be recovered after a trial on the merits. The defendants complied with the condition to the extent of making the necessary deposit, and thereby secured a trial, which resulted in a dismissal of plaintiff’s complaint. The defendants thereupon withdrew their deposit, and the plaintiff appealed from the judgment, which was afterwards reversed and a new trial directed. The order for the new trial directed the. defendants to restore the security money so withdrawn; that the parties might be reinstated to the position they occupied when the trial was had. The defendants now move to resettle the order by. eliminating the' provision as to the deposit money.

The direction was not improper. It merely recognized the fact that by the order permitting a defense the defendants were to have' a trial only on condition that the deposit was made, which implies that it was to be kept good, and this would have been the effect of the order of reversal if the special provision had been left out. “ The reversal of a judgment by any competent authority restores the parties litigant to the same condition in which they were prior to its rendition. The judgment reversed becomes mere waste paper; and the parties to it are allowed to proceed in the court below * * ■ * . in the same manner, and to the same extent, as if their cause had never been heard or .decided by any court.” Freeman on Judgments (3d ed.), § 481. It would seem to follow, therefore, that if the defendants neglect to restore the deposit they fail to observe the spirit and purpose of the order under which they seek to defend and thereby lose the benefit of that order. They cannot claim a benefit under it, if they refuse obedience to its conditions.

. In Mitchell v. Menlde, 1 Hilt. 142, the court held, that where a judgment by default was opened and .the cause set down for trial, on conditions which were not complied with, the plaintiff was not-bound to prove his cause of action anew, but might, on proof of noncompliance, take an order vacating the one opening the default, .and permitting the original judgment to stand.

"We think this is the practice that ought to be followed if the deposit is not kept good by restitution. See, also, Cunningham v. Hatch, 3 Misc. Rep. 101; 51 N. Y. St. Repr. 859.

The motion to resettle the order will, therefore, be denied, without costs.

Present: Daly, P. J., McAdam and Bischoff, JJ.

Motion denied, without costs.